IN THE SUPREME COURT

STATE OF NORTH DAKOTA

Supreme Court No.  20080071

Northeast Judicial District,  County of Benson,  Court No. 03-07-C-159

JANIS SCHMIDT,

Petitioner and Appellant

VS.

JOB SERVICE NORTH DAKOTA,

Respondent and Appellee

and

WARWICK PUBLIC SCHOOL DISTRICT #29,

Respondent and Appellee

ON APPEAL FROM A MEMORANDUM OPINION AND ORDER

Northeast Judicial District, County of Benson

The Honorable Donovan Foughty

REPLY BRIEF

JANIS SCHMIDT

Janis Schmidt,

Appellant, pro se

Warwick, ND  58381

Phone 701-294-2196

ISSUES PRESENTED

1. Whether Schmidt was discharged from her most recent employment for reasons that constitute misconduct?

2. Whether a nonrenewal hearing can be substituted for a dismissal hearing in assigning misconduct to a teacher as a reason to deny unemployment benefits? 

STATEMENT OF FACTS

• This matter arose as a result of my reporting the rape of a student who told me in class she had been raped.  (Record, p. 146, line 4-16) 

·        The Warwick Public School administration had not reported the rape to Social Services.      (Id, p. 146, line 4-16)

• Instead of reporting, administrators retaliated by coercing me to attend unscheduled meetings in which I was accused of having ulterior motives for working in the school, yet they would never identify what my supposedly ulterior motives were.   (Id, p. 115-120)
• WPS retaliated against me by giving me low evaluation scores.  (Id, p. 127, 128)
• WPS retaliated against me by removing students from my classes without explanation or discussion.  (Id, p. 127, 128, 198)

• I wrote a letter to the School Board about irregularities going on at the school, informing them of how the school had not reported the rape.  (Id, Exhibit #11, p. 257-261)  When I informed Mr. Guthrie I had informed the School Board, he became angry and fired me that day on January 4, 2007.  (Id. p. 106, 113)
• In order for me to return to teaching, Guthrie demanded I agree to  5 Directives, as a condition for my reemployment.   (Record, Exhibit 2, p. 251, Exhibit 3, p. 253)

• Mr. Guthrie admitted that I did not violate any of those Directives after I returned.  (Id, p. 131-135)

• The principal, Mr. Riedinger, unprofessionally disrupted my 7^th grade English class by telling the kids they can get up and leave my class at any time, by removing students from my class without any explanations, by using the students to falsely accuse me.  Whenever I complained to Mr. Guthrie[1] about how Mr. Riedinger’s actions, Mr. Guthrie intimidated me into attending unscheduled meetings which has no other apparent purpose other than requiring me to endure interrogations by Mr. Guthrie without knowing what the purpose and nature was.    (Record, p. 124-144)

• My contract for the 07-08 school year was nonrenewed at a nonrenewal hearing.  (Id, Exhibit C, p. 243)

• I was notified of the nonrenewal hearing but chose not to subject myself to further abuse, knowing that the School Board can nonrenew a first year teacher for any reason.  (Id, p. 183-185)
• I submitted complaint to N.D. State Board of Education and sent a letter to Sheriff Royer, complaining that crimes were being covered up.  (Record, p. 366)   
• On April 11^th, 2007, I was fired, without notice, without a hearing, with no appeal rights, and I was not given a reason for why I was fired. (Id, Exhibit D, p. 244-245)

I.          Warwick School did not meet its burden of proof to prove misconduct. 

             Job Service make its decision based solely on WPS’s teacher evaluations and Supt. Guthrie’s 5 directives.  WPS states I was nonrenewed and not discharged.  If that were true, then there should be no question about my eligibility for benefits, because I did not quit my job.  Job Service decided, 

“In this case, the greater weight of the evidence in the record gives rise to a determination that the claimant deliberately violated a standard that she knew…would result in her termination of her employment by deliberately failing to comply with directions or instructions from her employer.  It is reasoned based on the diverse number of people who approached the employer and the tribal chairperson that the information relayed to the employer concerning the claimant’s insubordination was true and accurate.  This is held despite the claimant’s denial.  The result might have been different if there were only one or two children who complained.  Indeed, the information that was supplied by the claimant herself in her letters and memorandums demonstrate that the claimant was insolent and unwilling to yield to the reasonable directives of the employer…A teacher who is non-renewed during the school year is viewed as a dismissal.  (Id, Decision, p. 344)

A nonrenewal is not the same as dismissal. 

1. In the very sensitive area of discharge of teachers for cause prior to the expiration of the term of the teachers' contracts, or in decisions not to renew the contracts of teachers, school boards shall give serious consideration to the damage that can result to the professional stature and reputation of such teachers, which stature and reputation were acquired only after the expenditure of substantial time and money in obtaining the necessary qualifications for such profession and in years of practicing the profession of teaching; and that in all decisions of school boards relating to discharge or refusal to renew contracts, all actions of the board be taken with consideration and dignity, giving the maximum consideration to basic fairness and decency.   (NDCC 15-47-38)

WPS has not offered one piece of evidence that proves any misconduct.  Furthermore, Jacobson’s Evaluation is invalid because Mr. Jacobson claims he never wrote it, and did not place it in my file.  He stated that Mr. Guthrie placed it in my file above his objections.  (Id, p. 186, 187)  Mr. Guthrie refused to name any of the diverse number of people who testified against me.  These alleged complaints were made throughout the school year, yet at no time  were these complaints ever brought to my attention, which greatly prejudiced me.[2]  This is nothing more than he-said/she said and fails the Rules of Evidence according to NDCC, Section 28-32-06.[3]  This Decision is wrong, and ought to be reversed. 

II.        Job Service decision that I had committed misconduct and then denied my unemployment benefits was fundamentally unfair and denied my fundamental right to due process.

Mr. Clinton stated,  “The hearing is the result of a timely appeal filed by the claimant from a Determination dated July 17, 2007, that Determination held that Ms. Schmidt was discharged for failing to comply with instructions or directions  from her employer and according to the information in the record, the Deputy determined that she was discharged for reasons that constitute misconduct and as a result she was disqualified from receiving Unemployment Insurance benefits.  That is the issue that we will address in the hearing, why is Janis Schmidt no longer employed by Warwick Public School District.  If she were discharged, the employer would have to show that she committed acts of misconduct in connection with the work, or she would have to demonstrate good cause attributable to the employer for leaving.”  (Record, p. 56)

Mr. Clinton, in his decision, incorrectly summarized the facts, totally ignoring the fact that I had just been fired for having informed the School Board that the School had not reported a rape as required by law. (Id, Exhibit 2, p. 251;  Ex 3, p.253-255;  Ex 4, p. 257-261;  Ex 14, p. 317-319, signed affidavit with district court)   Mr. Clinton erroneously found that “on January 5, 2007, the claimant met with the superintendent of the school district to discuss some of the employer’s concerns regarding the claimant’s work performance.”  As evidenced and in hearing, this simply was not the purpose of the Jan 5^th meeting.   The purpose of the meeting was to coverup for an unreported rape and threaten me with dismissal for having told the school board and the State Board of Education.  (Record, p. 105-115)   Mr. Clinton continued to base his decision upon false premises, and upon the incorrect statements of the Claims Taker.  “The determination of the deputy, dated July 17, 2007, is affirmed.”  (Id, Decision, p. 344)

III.              Job Service ruled that  the Notice of Nonrenewal the Notice of Discharge, which is contrary to North Dakota teacher laws.  

Job Service failed to establish my last day of work.  (Id, p. 99-101)  Job Service erred in establishing the reason I was no longer employed, and made a decision contrary to North Dakota teacher dismissal laws. 

When asked by Mr. Clinton for the reason why I was no longer employed, Mr. Guthrie replied:  “Was she fired?  She was nonrenewed.”  (Id, p. 99, line 15) 

MR. GUTHRIE:  The Notice of Nonrenewal was her notification that her contract would not be renewed and her contract was up at the end of the school year which I think was 25^th of May. [2007]  (Id, p. 100, line  18-19)

            Mr. Thune admitted that I was nonrenewd, and that “the School Board never went through a discharge hearing, which is a separate section of the NDCC, Section 15.1-15-06, and the discharge would be more consistent with the general meaning of firing because that means that means that the contract is over and we’re not paying you any more…..”  (Id, p. 101, line 8-11)

MR. CLINTON:  I am going to make an interim finding unless Mr. Bachrach objectures, that I will consider the Notice of Nonrenewal the Notice of Discharge.  (Id, p. 102, line 11, 12)

            This ruling is in direct contradiction to teacher dismissal law, NDCC 15-47-38, which clearly delineates that nonrenewal and dismissal are two separate procedures.  Mr. Clinton’s reason for this ruling is capricious, nonsensical, and is not supported by law.  (NDCC 15-47-38)  “…events of subsequent discharge are gonna be given much less significance than those that lead up to the time of separation.  Did the Board vote, the Board voted.  Don’t I have the minutes of that, Mr. Guthrie in one of these things, the nonrenewal?”  (Record, p. 103, line 8-11)

MR. THUNE:  The Executive Session minutes are sealed…(Id, line 14) 

MR. CLINTON:  I was thinking of the April 11^th, 07, minnutes.  (line 17)

MR. THUNE:  And, that is April 11^th minutes from Exhibit D that would in essence be the last day that she was actually employed, with nonrenewals that notice came out on March 28^th, Exhibit C, her employment normal employment continues.  It continues till the end of the school year.  [She] just ha[d] been told that when the school year is over [she] doesn’t have a job again.  (Id, p. 103, line 18-22)

MR. CLINTON:  “…Reduction in Force…I can understand how that works even under the usual common law employee distinction….I thought that might limit the scope of the hearing if I was able to ascertain a date.  Please, Mr. Bachrach, your opportunity to examine Mr. Guthrie.  (Id, p. 104, line 1-8)

Mr. Clinton has demonstrated that he doesn’t understand how teacher dismissal laws work, that Reduction in Force does not remotely apply, that common law employee distinction does not apply. 

MR. BACHRACH:  I understand, but now, my concern based upon what I’ve heard is that they have not introduced any procedure  by which she was terminated for misconduct.  (Id, line 15-16)

MR. CLINTON:  We’ll go there later, Mr. Bachrach.  (Id, line 17)

But, Mr. Clinton never did go there.  The law says that the State shall not deprive any person of life, liberty, or property, without due process of the law." The two concepts of this fourteenth amendment that most apply to teachers when dealing with issues of due process are "liberty and property".

If the first year teacher is dismissed during the year of the contract, then notice, a hearing, and reasons for dismissal are required. There is an important difference between a dismissal during the term of the contract and a mere non-renewal. (NDCC 15-47-38(2))   My reputation was stigmatized by the misconduct charge.  Both my property and liberty were egregiously violated by this cavalier assignment of misconduct to my teaching credentials and my permanent record.

            Submitted July 11, 2008.

                                                            Respectfully submitted,

                                                            Janis Schmidt

                                                            Warwick, ND  58381

CERTIFICATE OF SERVICE

Janis Schmidt v. Job Service ND and Warwick School Dist #29

Case No. 03-07-C-00159

I swear upon pains and penalties of perjury that a true and correct copy of Appellant’s Reply Brief was mailed to respondents on July 11, 2008, by first class mail.

Tiffany Johnson                                                                                                 Pearce & Durick                                                                                                    

Douglas A. Bahr                                                                                                 Solicitor General                                                                                                         

                                                                        _______________________________

                                                                        Janis Schmidt